After the dramatic events of 9/11 "a broad set of emergency powers based on the concept of 'exceptions' has emerged to offer political leaders and other public officials a legislative framework for acting outside normal constitutional and representative institutions. Carl Schmitt, the deeply conservative jurist who was a critic of the Weimar Republic, is perhaps the most pre-eminent theorist of the exception: 'exception' is the capacity of the sovereign to make decisions in terms of its political will rather than be constrained by normative 'law'. Schmitt suggests the exception as something that is '… codified in the existing legal order, can at best be characterised as a state of peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to preformed law' ". In this context, the emergence of certain aspects of a 'state of exception' (...) should be a cause for concern for those interested in the protection of fundamental political rights."
Kanishka Jayasuriya, Political Science, City University of Hong Kong

April 2014

USA - State of Exception and the CIA's extra-judicial rendition and interrogation program. Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 03Apr14

The United States is implicated in a case currently pending before the European Court of Human Rights concerning two Guantánamo detainees who claim to have been tortured in Poland after an extraordinary rendition by the Central Intelligence Agency (the "CIA")

The applicants are Abd Al Rahim Hussayn Muhammad Al Nashiri, a Saudi Arabian national of Yemeni descent who was born in 1965; and Zayn Al-Abidin Muhammad Husayn, also known as Abu Zubaydah, a stateless Palestinian, who was born in 1971 in Saudi Arabia. Both men are currently detained in the Internment Facility at the U.S. Guantanamo Bay Naval Base in Cuba...

"Both applicants allege that they were victims of 'extraordinary renditions' by the CIA, that is, of apprehension and extrajudicial transfer to a secret detention site in Poland with the knowledge of the Polish authorities for the purpose of interrogation, during which they were tortured. Both men state that in December 2002 they were taken to Poland on board the same 'rendition plane'."

Both detainees' submissions are based in the so-called "Marty Reports", prepared by Swiss Senator Dick Marty, in 2006, 2007 and 2011, as rapporteur for the investigation conducted by the Parliamentary Assembly of the Council of Europe into allegations of secret detention facilities being run by the CIA in several Member States; they are also based on a report prepared by the CIA inspector general in 2004 on 'counterterrorism detention and interrogation activities' between September 2001 and October 2003. Their submissions also refer to a 2007 report by the International Committee for the Red Cross on the treatment of 'high value detainees' in CIA custody...

"The Marty Reports detail an intricate network of CIA detention and transfer in certain Council of Europe States. Among other things, the reports identify the secret detention centre in Poland as being located in the Stare Kiejkuty intelligence training base near the town of Szczytno in Northern Poland."

Mr Al Nashiri’s and Mr Husayn's complaints before the European Court of Human Rights relate to three principal issues: their torture, ill-treatment and incommunicado detention in Poland while in US custody; their transfer from Poland; and, Poland’s failure to conduct an effective investigation into the events."

"More recently, evidence has emerged that the CIA paid $15 million in cash to the intelligence service of Poland in order to make use of a secret detention site there to interrogate al-Qaeda suspects..."

Also, the Senate Intelligence Committee has produced a 6,300-page study, not available to the public yet, on the CIA Detention and Interrogation Program. Its Chairman, Dianne Feinstein, spoke on the Senate floor on 11 March 2014 in order to clarify the information that was published by the press concerning the CIA's intrusion and search of the Senate Select Committee's computers as well as the committee's acquisition of a certain internal CIA document known as the Panetta Review.

The debate surrounding the CIA's interrogation program is being revisited...

Usa - District Court affirms its dismissal of civil lawsuit brought by family members of wrongfully detained men who died at Guantánamo. (CCR). Radio Nizkor with the collaboration of the International Human Rights Law Clinic at the American University Washington College of Law, 17Nov10

On September 29th, 2010, the United States District Court for the District of Columbia affirmed its decision to dismiss Al-Zahrani v. Rumsfeld, a civil lawsuit brought by the Center for Constitutional Rights (CCR) and co-counsel concerning the deaths of three Guantánamo prisoners in June 2006.

The Court denied plaintiffs' motions for reconsideration despite newly-available evidence from soldiers stationed at the base at the time of the deaths that strongly suggest the men were killed at a black site at Guantánamo and a government cover-up of the true cause and circumstances of the deaths. The government reported the deaths as suicides.

The case, filed on behalf of the families of two of the deceased, Yasser Al-Zahrani of Saudi Arabia and Salah Ali Abdullah Ahmed Al-Salami of Yemen, charged the government and 24 federal officials with responsibility for the men's abuse, wrongful detention and ultimate deaths...

The case was initiated in the District Court for the District of Columbia on June 10, 2008, and the defendants subsequently moved to dismiss. On February 16, 2010, the district court granted the defendants’ motions and dismissed the case, holding that national security considerations prevented the court from hearing the families' claims...

Following the dismissal, the families filed a motion for reconsideration on the basis of the evidence from the soldiers, as reported by Scott Horton in Harper's Magazine in January 2010, arguing that the new facts compelled the court to reopen the case and they requested for permission to amend their complaint to incorporate the Newly-Discovered Evidence...

Usa - The legal situation of the Guantanamo detainees, the
Supreme Court decision on Hamdan v. Rumsfeld and its implications for the future. (By Richard Wilson). Radio
Nizkor, 28Sep06.

Richard Wilson, Professor of Law and Director of the International Human Rights Law Clinic at the American University of
Washington, provides us with a new and in depth update on the Detainees at Guantanamo Bay, their legal situation and in
particular the legal situation of Wilson's client Omar Khadr, a Canadian citizen detained by U.S. forces in July 2002 when he
was 15 years old.

Richard Wilson has collaborated with Equipo Nizkor for several years. He is also a member of Equipo Nizkor‘s Board of
Directors.

Wilson has addressed for Radio Nizkor the situation of the Guantanamo Detainees and the US Administration policies on
Guantanamo on two previous occasions:

In this speech Wilson analyzed the "legal black hole" surrounding the status of the Guantanamo detainees, as well as the
question of precautionary measures that the Inter-American Commission on Human Rights had asked the US government to adopt.

In this new and in depth interview Richard Wilson provides the audience with:

1) An Update on the Detainees at Guantanamo Bay, their legal situation and in particular the legal situation of Wilson’s
client Omar Khadr. [Starting at 00:02:48]
2) A detailed review of the decision by the US Supreme Court in the case of Hamdan vs. Rumsfeld decided on June
29th, 2006, and [Starting at 00:31:15]
3) A detailed comment on the possible legal implications for the future of the Hamdan decision and some of the current
pending actions in the US Courts that have been left unresolved by this decision. [Starting at 01:10:39]

Upon addressing those matters, Wilson provides the audience with an outstanding systematization of the current legal
situation of the Guantanamo Detainees and the issues at stake in order to properly exercise their defense.

Usa - Graham amendment passes, stripping federal courts of jurisdiction to
hear applications for habeas corpus. (Center for Constitutional Rights). Radio Nizkor with the collaboration of the Schell
Center for International Human Rights at
Yale Law School, 15Nov05

"The Bush Administration, through an amendment introduced by South Carolina Senator Lindsey Graham, has successfully
stripped federal courts of jurisdiction to hear applications for habeas corpus brought by those unilaterally declared enemy
combatants without any process and held by the U.S. indefinitely throughout the world and even in the United States.

This was accomplished by means of a last minute amendment to the Military Authorization Bill, brought up on the floor of
the Senate without committee deliberations and virtually no advance warning to the American people that it was happening.

It was not only human rights groups like the Center for Constitutional Rights, but many in the military or retired from the
military who opposed the Graham amendment: Judge John Gibbons, who argued the landmark case Rasul v. Bush before the Supreme
Court; John Hutson, Dean of Franklin Pierce Law Center and former Judge Advocate General of the U.S. Navy, and the National
Institute for Military Justice, among others, wrote open letters to the Senate to oppose the dismantling of habeas corpus..."

Usa/Iachr - Inter-American Commission on Human Rights Extends Precautionary
Measures on Guantánamo Detainees. (Int. Human Rights Law Clinic at American University of Washington; Center for
Constitutional
Rights). Radio Nizkor with the collaboration of the Schell Center for International Human Rights at Yale Law School,
12nov05

On November 2, 2005, the Inter-American Commission on Human Rights extended precautionary measures for the men being held
indefinitely at Guantánamo Bay by the U.S. government.

Attorneys from the International Human Rights Clinic at American University's Washington College of Law and the Center for
Constitutional Rights had a hearing before the Commission on October 20th.

The Commission's measures included requests:

that the U.S. government ensure the detainees at Guantánamo are not transferred to countries where there are substantial
grounds for believing they would be in danger of being subjected to torture or other mistreatment;

that the U.S., in accordance with international law, not permit any statement obtained under torture to be used in a
legal proceeding;

that the government investigate and prosecute instances of abuse and torture, which does not mean letting the Department
of Defense continue to investigate itself; and

to have the legal status of the Guantánamo detainees determined by a competent tribunal, which has not been adequately
addressed by the military tribunals or the habeas corpus proceedings to date.

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Cidh - La Comisión Interamericana extendió las medidas
cautelares a favor de los presos de
Guantánamo. (Int. Human Rights Law Clinic of the American University of Washington; Center for Constitutional
Rights). Radio Nizkor, 06nov05.

Usa - Attorneys representing several Guantanamo
detainees challenge the Administration's effort to undermine Supreme Court's decision in Rasul v.
Bush. (Center for Constitutional Rights). Radio Nizkor with the collaboration of the Schell
Center for International Human Rights at Yale Law School, 20Dec04.

On December 1st, 2004, the Center for Constitutional Rights asked two federal court judges to
forcefully reject the Bush Administration's effort to dismiss 12 Habeas Corpus petitions brought on
behalf of individuals detained at Guantanamo Bay.

In an extraordinary move, the government has essentially sought to overturn the decision of the U.S.
Supreme Court in the landmark case Rasul v. Bush.

On November 5th, 2004, a group of attorneys representing several Guantanamo detainees submitted a
Memorandum in opposition to the government's motion to dismiss the instant habeas petitions.

The Petitioners assert in their Memorandum the following:

that the President's exercise of his war powers is subject to judicial review

that the Supreme Court has already determined that the Guantanamo detainees have stated a claim

that pertinent case law, moreover, confirms that the detainees have due process rights under the
Constitution that they may vindicate through habeas actions.

that the detainees also have rights under the Geneva Conventions and other international law that
may be vindicated in a habeas action and,

that the detainees have common law rights that inhere in the habeas statute and do not depend upon
the cognizability of rights otherwise provided by the Constitution, laws or treaties of the United
States.

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Usa - US District Judge rules in Hamdan v.
Rumsfeld that the Geneva Conventions protect those incarcerated at Guantánamo. Radio
Nizkor with the collaboration of the Schell Center for International Human Rights at Yale Law School,
07Dec04.

In a decision dated November 8, 2004, US District Judge James Robertson ruled that it is unlawful to
try prisoners detained at Guantánamo by the currently constituted Military Commissions.

"In his ruling on Hamdan v. Rumsfeld, Judge Robertson asserted that the Geneva Conventions - the
conventions signed by the United States and countries all over the world to govern the conduct of nations
during wartime - protect those incarcerated at Guantánamo."

According to the Court, all those arrested in or around the conflict in Afghanistan must be treated as
prisoners of war if there is any doubt as to their status.

Under the Geneva Conventions, prisoners of war must be provided the same legal process as the soldiers
in the armed forces of the capturing army. Mr. Hamdan, the petitioner in the case, is, therefore,
entitled to have his case heard by a properly convened military court or courts martial as defined under
United States law...

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Octubre 2004

Usa - Update on the situation of the detainees in
Guantanamo Bay and the current status of legal issues relating to this matter. (By Richard Wilson).
Radio
Nizkor, 02oct04.

Richard Wilson is Professor of Law and Director of the International Human Rights Law Clinic
at the American University of Washington and Equipo Nizkor collaborator.

Gtmo - Resolution of
the International Federation of Human Rights on the Guantanamo Bay detainees.Statement approved
at the XXXV Congress of the FIDH, held in Quito, Ecuador, 2-6 March 2004. Radio Nizkor,
27mar04.

US policy after 9/11: The situation of Detainees at Guantanamo Bay and the Inter-American Human Rights Commission Response.By Richard Wilson, Professor of Law and Director of the International Human Rights Law Clinic, American University Washington, D.C. Radio Nizkor, 13Feb04

Richard Wilson analyses the "legal black hole" surrounding the status of the Guantanamo detainees, as well as the question of precautionary measures that the Inter-American Commission on Human Rights has asked the US government to adopt.

The Commission decided during its 114th regular period of sessions to adopt precautionary measures on behalf of the Guantanamo detainees.
The Commission asserted that:

"....where persons find themselves within the authority and control of a state and where a circumstance of armed conflict may be involved, their fundamental rights may be determined in part by reference to international humanitarian law as well as international human rights law. Where it may be considered that the protections of international humanitarian law do not apply, however, such persons remain the beneficiaries at least of the non-derogable protections under international human rights law. In short, no person under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights".

What is this "Legal Black Hole" and what is the executive branch's theory as to why these individuals are caught there?

"The US applies a perverse logic to conclude that all the individuals detained in Guantamo are 'unlawful combatants' ".

This is what Richard Wilson clearly explains us.

Tecnical Data:

This speech was first recorded in Brussels (Belgium) on March 27, 2003; its digitization, production and online posting have been carried out by Radio Nizkor on February 22, 2004.

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